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Nick Terry v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 3, 2011

NICK TERRY, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff was directed, by Order filed on October 14, 2011, to show cause why all defendants should not be dismissed pursuant to Fed. R. Civ. P. 4(m) or, in the alternative, for plaintiff's failure to prosecute. Plaintiff, a state prisoner proceeding pro se, in an action pursuant to 42 U.S.C. § 1983, had paid his filing fee in full*fn1 and had been directed to complete service of process of his second amended complaint within sixty days in accordance with Fed. R. Civ. P. 4, but there was no evidence that the defendants had subsequently been served.

However, the show cause order was returned, indicating that plaintiff is deceased. At this time, although it is not clear that any defendant was served,*fn2 the court will direct the state Attorney General's Office to file a notice of suggestion of death pursuant to Fed. R. Civ. P. 25(a)(1). The suggestion of death, in order to be valid and to invoke the ninety day limit for filing of a motion for substitution, should, if possible, identify the successor or representative who may be substituted for decedent. Smith v. Planas,, 151 F.R.D. 547 (S.D. N.Y. 1993).

Accordingly, IT IS HEREBY ORDERED that:

1. Within twenty-eight days of the date of this order, the state Attorney General, or a designee, shall, if known, file a Suggestion of Death identifying plaintiff's successor or representative. The Attorney General, or her designee, shall also, if practicable, also serve a copy of the Suggestion of Death on plaintiff's successor;

2. The Clerk of the Court is directed to serve a copy of this order on Monica Anderson, Supervising Deputy Attorney General; and

3. As plaintiff is evidently deceased, the Clerk of the Court is directed not to serve a copy of this order upon him at the prison address, as the mail will simply be returned.

GGH:009 terr1842.ord


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